December 18, 2006 1:01 PM PST

Australian court rules against MP3 link site

Linking to copyright music posted elsewhere online without permission can be illegal, an Australian appeals court ruled Monday.

The issue before a three-judge panel at the Federal Court of Australia was whether Stephen Cooper, a retired policeman who ran the now-defunct site MP3s4free.net, was legally allowed to post links to mostly copyright MP3 files hosted on other servers. Cooper does not appear to have hosted any copyright music on MP3s4free.net.

Upholding a single judge's ruling from last summer, the appeals panel agreed that linking runs afoul of Australia's copyright laws, handing a victory to Universal Music Australia and the other major labels that brought the suit in 2004.

"A principal purpose of the Web site was to enable infringing copies of the downloaded sound recordings to be made," Judge Susan Kenny wrote in her opinion. "The fact that the Web site also carried a warning that some downloading could be illegal did not lessen the force of the invitation."

Cooper, a resident of the state of Queensland, had argued that he had no power to prevent illegal copying because users could "automatically" add links to the site without his control. He likened his site to Google's search engine as a mechanism for pointing users to other sites--an analogy that one judge deemed "unhelpful," in part because Google was not designed exclusively to facilitate music downloads. The opinion also noted that even the search giant is not always free to link to everything it wishes.

Furthermore, Cooper's "deliberate choice" to set up the site in such a way that he couldn't restrict access to copyright files when he could have designed it otherwise rendered him guilty of authorizing copyright infringement, the judges said in a multipart opinion.

This is not the first time that linking to illicit material has been deemed illegal. In 2001, a U.S. federal appeals court ruled that a news organization could be prohibited from linking to software that can decrypt DVDs. "The injunction's linking prohibition validly regulates (2600 Magazine's) opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs," the appeals court said. A Dutch court in 1999 reached a similar conclusion.

The Australian judges also agreed with an earlier court ruling determining that E-Talk, the company that hosted the MP3s4free site, and Comcen Internet Services, E-Talk's parent company, had also broken the law because they did not do enough to stop Cooper from committing copyright violations.

"Rather than withdrawing hosting of Mr. Cooper's Web site, or otherwise placing pressure on Mr. Cooper to stop his Web site (from) being used for the predominant purpose of copyright infringements, E-Talk sought to achieve a commercial advantage from advertising on Mr. Cooper's Web site," Judge Catherine Branson wrote.

The court did overturn a guilty verdict against Comcen employee Chris Takoushis, saying there was no evidence to suggest that Takoushis had the authority to personally terminate Cooper's site--or compel his employer to do so.

Sabiene Heindl, general manager of an Australian company called Music Industry Piracy Investigations, hailed the court's decision as a victory for Australian record labels.

"Internet service providers have an important role in ensuring that wholesale music copyright infringement is not taking place on their networks, and this judgment sends a clear message to the industry that operators are at risk of being held liable if they are doing the wrong thing," Heindl said in a statement.

Attorneys for Cooper were not immediately available for comment.

As previously reported, Music Industry Piracy Investigations first suspected Cooper's site of piracy in December 2002 and raided his premises as part of a broader sweep of Internet file-sharing sites in 2004.

According to the Australian investigators, Cooper's site recorded a total of 191,296,511 hits to the site, with 7,081,899 unique visitors, between November 2002 and October 2003. During that same time, 1.97 terabytes of data were downloaded from the site.

CNET News.com's Declan McCullagh contributed to this report.

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10 comments

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Wonder how they'll respond to Mix2r.com
The Australian government seems more bent on keeping the record industry in power than the actual protection of individual rights under copyright laws in some ways. Have they mandated that artist should get to keep a certain percentage? no. Have they done much to create a fair and balanced playing field for artists and the record companies that sign them? No. I wonder how they are going to deal with new models for the music industry like Mix2r.com where bands are allowing their fans to download tracks for their music and mix in their own guitar/keyboard, vocal tracks.
Posted by Technoracle (18 comments )
Reply Link Flag
Legality. It just an opinon afterall.
So in this current Australian and US opinion of law, can writing
about a murder or any other criminal act for that matter (be it real
or not) be illegal? Afterall, murder is a crime. Copying copyrighted
material is a crime, ergo.
Posted by jrzshor (102 comments )
Reply Link Flag
I think you missed the point
I am not saying I agree with the court's ruling, I don't. But it isn't "illegal" to write about murder or about mp3s it is "illegal" to facilitate the crime. For example, if I wrote a book directly encouraging murders, e.g., telling people how to make the undetectable poison and how to not get caught, then I could be held liable civilly and possibly criminally. Unless of course my book was not just a 101 on how to kill, e.g., it was artistic or it was a non-educational book for teaching law enforcement.

I guess these courts are not limiting our free speech but adding a condition of responsibility to it. This can be a good thing, we wouldn't want someone to be allowed to yell fire in a moving theater.
Posted by hybris06 (66 comments )
Link Flag
And yet the court found the dingo innocent
The court may decide, but it doesn't mean the court gets it right.

An innocent Australian woman was convicted to life
imprisonment because the High Court was convinced of its own
superiority in deciding right & wring.

It was later shown to be wrong.

At least MP3 links aren't a life & death issue. Yet. Give the ARIA
(Australian equivalent of the RIAA) time though.
Posted by dotmike (154 comments )
Reply Link Flag
Expected ruling
Napster didn't directly host the content either, they provided a median that was designed to allow others to exchange it illegally.

Given that the sites focus seemed to be specifically to link copyrighted music (MP3s4free?) the ruling isn't too surprising.
Posted by Dachi (797 comments )
Reply Link Flag
Napster was the crack house...
I disagree with your Napster analogy . Napster was more the equivalent of a sleaze motel or a crack house. Though music never touched Napster's servers Napster helped people to connect to each other so they could exchange music directly. Sorta like how a drug dealer might do business out of a motel, the motel owner isn't buying drugs, he is just enabling the drug dealer by providing space for the illegal activity.

Linking is very different. Linking isn't facilitating the exchange of music directly. The ruling though states that mp3s4free.com encouraged people to commit the illegal activity. So can I now sue the grocery stores of Australia for hurting my health because they sell and advertise unhealthy food and cigarettes?

I think the court was wrong on this ruling because they were too general. Why is it ok for a search engine to link to mp3 sites but not a smaller site? Perhaps the music industry is too scared to go after Google because they could simply remove all links to mp3 sites and the RIAA members (just a thought).
Posted by hybris06 (66 comments )
Link Flag
Big Business VS public opinion
As far as I can see it is just a case of money talks and bullsh*t walks. A judge is going to vote in favor of big businesses aka the person who has the most money because they can afford the best lawyers. The common interest of the public takes a backseat in the face of any confict of interest with big business. And you can search for MP3's with google....try www.g2p.org
Our legal system is bought out...a joke...just because the 'entertainment' industry can't evolve with technology they resort the old methods of making threats and filing lawsuits.
Posted by ozidigga (77 comments )
Reply Link Flag
Actually
Actually, it is a judgement, on the old copyright act of 1968 and will now be no longer relavent as, hence no change in status ruling, which the appeal court judges were well aware of, or a dead ruling on a law which will be superceded, an interesting legal conundrum! This act will be superceded by a totally rewritten copyright act of '06 scheduled to the final pre christmas sessions of Federal Parliament to be validated no later than January 1st 2007, as part and parcel of the as yet to be ratified US Free Trade Agreement , to eliminate all public debate on it's ramifications and the very generous provisions to the foreign dominating big 4 in music and video in Australia!

This is required for Australia's pre-compliance prior to the US ratifying the so called Free trade act which offers no benefits on the Australian side of the fence for at least 20 years or so(it's in the fine print which is conveniently overlooked by the major Australian media players(given the sheer volume of purchases of overseas media a "Berlesconi third party inflating double paper scam, could be easily contrived though!, and few in Australia would be the wiser, unless given complete access to the books and tax records of the media provider?))

As the late Ned Kelly would say "Such is Life"
Posted by heystoopid (691 comments )
Reply Link Flag
Music Police - Public Anouncement
Please note that shortly it will be illegal to hum songs you don't legally own, and after that has proven successful any songs that are silently hummed.

If that doesn't stop you punks then we?ll be forced to get a legal injunction to cut out the bit of your brain that is currently holding the offending tune.

Be sure, that only we, the Music Industry may make a profit from disseminating "copyright infringed material", oh and don't worry, we?ll throw crumbs the artist way so they don?t starve while we?re milking them.

Smile and have a nice day.
Posted by matthamon (2 comments )
Reply Link Flag
Other copyrighted material.
So how will this effect linking to other copyrighted material such as drivers or manuals from places such as ebay and other digital pay load sites, where people charge for links or copied restore cds.
Is this illegal or not ?
Posted by D.Smit (1 comment )
Reply Link Flag
 

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